concurring in the result.
I concur in the result reached by the Court in this case. But, while I.C. § 18-8002A(4)(a) provides that, when a person submits to a drug test, the Department must show the test results indicated the presence of intoxicating drugs in the person’s system in order to suspend the person’s driver’s license, I would not make a blanket statement that the failure of a test to indicate an intoxicating drug at the time of the test always constitutes a failure to meet the requirements of Section 18-8002A(4)(a). Where, as here, Carboxy-THC is a derivative or metabolite of an intoxicating drug, test results indicating the presence of the derivative or metabolite, when supplemented by testimony extrapolated back to the time of the alleged offense to show that the intoxicating precursor was then present in the person’s system, would satisfy the test element of the statute. In other words, if the Department is able to show that the person’s system contained a drug that was in its intoxicating form at the time of the offense, the statute is satisfied.2 There was no such evidence in this case. The evidence showed that with *953the passage of time marijuana degrades to its metabolite, Carboxy-THC, but there was no evidence presented to the hearing officer to show that this change took place after the alleged offense, rather than beforehand. If there had been competent evidence in this case to show that the intoxicating form of the drug was in Reisenauer’s system at the time of the alleged offense, a suspension of his license would have been warranted.
There are several aspects of this case that cause concern. It was rather surprising to hear counsel for the Department say in oral argument before the Court that the Department does not pursue license suspension proceedings in cases where no alcohol or drug test is administered. This appears to be based upon the Department’s reading of Section 18-2002A(4)(a) — that the driving under the influence element (“person had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol, drugs or other intoxicating substances”), is not particularly an indicator of impairment, or a separate ground for license suspension, but primarily an indicator that the police had probable cause to effectuate a stop of the suspect person.
The driving under the influence element is not, as the Department suggested, merely language to establish that there was probable cause to stop the driver. Rather, it allows for suspension of a person’s driver’s license where there are legal grounds to believe the person had been driving under the influence of an intoxicating substance. The statute assumes that there must be legal cause to stop the person. I.C. § 18-8002A(7) indicates five independent grounds upon which a person may challenge his license suspension, including that:
(a) The peace officer did not have legal cause to stop the person; or
(b) The officer did not have legal cause to believe the person had been driving or was in actual physical control of a vehicle while under the influence of alcohol, drugs or other intoxicating substances in violation of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code, or
(c)The test results did not show an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code ...
Subsections (a) and (b) make it clear that legal cause to stop, and grounds to suspend the license of a person who has been driving under the influence, are two different things, either of which, if proven by a person challenging a license suspension, can provide grounds for relief. The Department’s reading of the provision is incorrect.
The Department’s reading of the statute has apparently lead it to the conclusion that it may not seek to suspend the driver’s license of a person who is not tested for alcohol or drugs (except for a person who refuses to be tested), even if the person is weaving all over the road. A fair reading of the statute does not support this conclusion. If an officer swears that there was legal cause to believe a person was driving under the influence, the person is subject to having his license suspended (unless a test is administered and the test results disclose no intoxicating substance). It is difficult to understand why a person would not subjected to a license suspension where he is obviously driving under the influence of an intoxicating substance and endangering the public on the road. Indeed, had no test been administered to Reisenauer in this ease, the statute would seem to have permitted a license suspension, based upon the officer’s observation of Reisenauer’s driving performance, his physical condition, and his unsatisfactory performance of field sobriety tests.
A correct reading of I.C. § 18-8002A(4)(1) produces a troubling conclusion. In this day and age, blood, urine, or breath evidence is generally regarded as critical to a DUI prosecution, as well as to a license suspension proceeding. While the statute would allow a license suspension when a person is shown to have been driving under the influence where no test has been administered, the statute, as drafted, requires the Department to show, when a test has been administered, that an individual is both driving under the influence of an intoxicating substance and that the test indicated the presence of the substance (.08 *954or more where alcohol is concerned). One might justifiably ask why, if a person is driving under the influence of an intoxicating substance, he or she should not be subjected to a license suspension, regardless of the test results, or vice versa.
It has been long been the law of this State that there are two ways of proving a person has been driving under the influence. I.C. § 18-8004(l)(a) states:
It is unlawful for any person who is under the influence of alcohol, drugs or any other intoxicating substances, or any combination of alcohol, drugs and/or any other intoxicating substances, or who has an alcohol concentration of 0.08, as defined in subsection (4) of this section, or more, as shown by analysis of his blood, urine, or breath, to drive or be in actual physical control of a motor vehicle within this state, whether upon a highway, street or bridge, or upon public or private property open to the public.
This Court has interpreted the statute as
[Establishing one crime with two ways of proving a violation____[T]he first way to prove a violation is to show under the totality of the evidence that the defendant was driving under the influence. The second way to prove a violation is to establish the defendant drove with an alcohol concentration of 0.08 percent or more. The State may elect to proceed against the defendant under either or both theories of proof.
Robinett, 141 Idaho at 112, 106 P.3d at 438 (citations omitted).
However, I.C. § 18-8002A(4)(a) departs from this two-way proof system when it comes to license suspension, providing:
Upon receipt of the sworn statement of a peace officer that there existed legal cause to believe a person had been chiving or was in actual physical control of a motor vehicle while under the influence of alcohol, drugs or other intoxicating substances and that the person submitted to a test and the test results indicated an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004,18-8004C or 18-8006, Idaho Code, the department shall suspend the person’s driver’s license ...
(emphasis added). The problem with I.C. § 18-8002A(4)(a) is the use of “and” instead of “or” between the driving under the influence element and the test results element. It seems inconceivable that the Department would only need to show test results indicating the presence of drugs or a BAC result of .08 or greater in order to convict a person of driving under the influence but that the State would have to show both the test results and that the person was driving under the influence before a license suspension could be made. It is equally inconceivable that even if the Department presented an adequate showing that a person was driving under the influence of drugs or other intoxicating substances, it would also have to show that where a test is given the test results indicating the presence of drugs or other intoxicating substances in order to support a license suspension. Yet, that appears to be the import of the language in the statute based upon the “and” between these two elements. It is doubtful that this is what the Legislature intended.
. The situation is akin to that where a blood alcohol test is used, not on a per se theory, but in order to demonstrate impairment at the time of the offense. In such a case the Court has stated:
Unlike proceedings on a per se theory, admission of a numerical BAC test result for purposes of demonstrating impairment must be extrapolated back to the time of the alleged offense to be relevant. The whole purpose of admitting the BAC test results is to show there was alcohol in the defendant’s blood and that the level of alcohol in his system would have impaired his ability to drive in some identifiable way. This requires there be evidence connecting the test result to the time of the alleged offense and evidence showing how the numerical result relates to the issue of impairment. In other words, numerical test results can be admitted in a driving under the influence prosecution if there is a connection shown between the numerical test result and driving impairment at the time the motor vehicle was operated. Therefore, the numerical results of Robinett's BAC tests are not relevant to a prosecution for driving under the influence because the results were not accompanied by any evidence that correlated the results to the time of the accident and how it would have impacted Robinett’s ability to drive.
State v. Robinett, 141 Idaho 110, 113, 106 P.3d 436, 439 (2005).